2013-30 (June 27,
2013)Recommendations; Sentencing Proceeding
Rules 1.2, 1.3, 2.10 & 3.3
Issue: May a Judicial Official provide a
letter of reference for a long-time friend in
connection with a federal sentencing hearing?

Additional Facts:
The Judicial Official was not subpoenaed,
but rather asked by defense counsel to provide a
letter of reference.

Response:
Rule 1.2 requires a judge to act at all times in a
manner that promotes public confidence in the
independence, integrity, and impartiality of the
judiciary and to avoid impropriety and the
appearance of impropriety. Rule 1.3 states
that a judge “shall not use or attempt to use the
prestige of judicial office to advance the personal
or economic interests of the judge or others, or
allow others to do so.” The Commentary to Rule
1.3 states, in relevant part, as follows:

(2) A Judge may provide a
reference or recommendation for an individual based
on the judge’s personal knowledge. The judge may use
official letterhead if the judge indicates that the
reference is personal and if the use of the
letterhead would not reasonably be perceived as an
attempt to exert pressure by reason of judicial
office.

Rule 2.10
(a) of the Code states that a judge “shall not make
any public statement that might reasonably be
expected to affect the outcome or impair the
fairness of a matter pending or impending in any
court or make any non-public statement that might
substantially interfere with a fair trial or
hearing.Rule 3.3
of the Code states as follows:

A judge shall not testify as a character witness in
a judicial, administrative, or other adjudicatory
proceeding or otherwise vouch for the character of a
person in a legal proceeding, except when duly
summoned.

The
Comment to the foregoing Rule states as follows:

A judge who, without
being duly summoned, testifies as a character
witness abuses the prestige of judicial office to
advance the interests of another. See Rule
1.3. Except in unusual circumstances where the
demands of justice require, a judge should
discourage a party from requesting the judge to
testify as a character witness.

Based upon the
facts provided, and in particular that the Judicial
Official has not been subpoenaed but rather asked to
voluntarily provide a letter of reference in
connection with a criminal sentencing, the Committee
unanimously determined that providing a letter of
reference to.the sentencing judge in a criminal case
was specifically prohibited by Rule 3.3 and
generally prohibited by Rules 1.2, 1.3 and 2.10(a).